Same-sex marriage is a marriage between two men or two women. This notion is contradictory to the understanding that marriage is an association between opposite sexes i.e. a man and a woman. Same-sex marriage is not celebrated in most of the countries in the world as there is a belief that such a relationship cannot even exist and therefore, it is difficult to give them a legal color. However, the 21st century has shown promising results by initiating the debate of holding such oppressive and discriminatory opinions as arbitrary and unconstitutional. Supporters are advocating that marriages between homosexuals are exactly the same as the marriages between heterosexuals. They have equal compassion and commitment towards their partners. Nonetheless, the governments are hesitant to accept such a view because of the stigma associated with it. The conservatives believe that there exists only binary genders and thus, a union is only possible between opposite sexes. 

International Outlook on Same-sex marriage

Internationally, same-sex marriage has got a mixed response. Some of the countries are in favour of allowing same-sex marriage while some of them find it unconstitutional. Seemingly, in the year 1989, Denmark became the first country that eventually gave legal recognition to same-sex relationships followed by 2012 legislation that allowed them to register their union as a marriage. However, between 1989 and 2012, different countries like Netherlands, Norway, Spain, South Africa, Sweden, etc. had already developed the intellect to accept the concept of same-sex marriage. 

Nonetheless, one of the progressive landmark judgments on this aspect came only in the year 2015.  The United States Supreme Court in the case of Obergefell v. Hodges has clearly stated that law which bans same-sex marriage and does not recognize same-sex marriages duly performed are manifestly arbitrary and unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.  The Court held that it would be demeaning to lock same-sex couples out of a central institution of the nation’s society, for they too may aspire to the transcendent purposes of marriage. The Court humbly observed that such laws banning same-sex marriage are a challenge to the liberty of same-sex couples as they are denied benefits which are afforded by opposite-sex couples and are barred from exercising a fundamental right. Therefore, this judgment till now acts as a strong precedent for the other countries to protect the fundamental rights of same-sex couples.  

Currently, only 29 countries give recognition to a same-sex relationship where Costa Rica is the latest country to recognize the same. However, contrary to the wave of accepting decriminalizing same-sex marriages and homosexuality, Singapore’s high court has recently upheld a colonial-era law that criminalizes sex between men putting the international financial centre at odds with the liberal trend to embrace same-sex relationships.¹ The Court held that homosexuality is not a form of expression and thus the court did not intervene with the law and rather preserved its constitutionality.  However, the judgment has got much criticism and there is a possibility that the judgment gets appealed before the Singapore Supreme Court.

While on the other hand, Costa Rica has now allowed marriage between same-sex after its Supreme Court’s ruling in the year 2020 which ultimately had struck down the ban on the same in order to protect social equality. Similarly, the Court in Japan has made an observation that the country’s failure to recognize same-sex marriage is unconstitutional as the Constitution of Japan defines marriage as one between both sexes. It cannot forget that these  progressive and liberal rulings are in consonance with the principles of the Universal Declaration of Human Rights (UDHR) which is in itself a milestone document to protect the human rights of every member of society. Article 16 of UDHR states that men and women of full age, without any limitation due to race, nationality, or religion, have the whole right to marry if there is consent between the intending spouses. Technically, no usage of words like the relationship between opposite-sex or union between only men and women is mentioned, rather, it has clearly limited the aspect of marriage to the intending spouse who in turn can be any two persons willing to marry.  

Position in India

Even in India, the debate between liberals and conservatives on the point of same-sex relationship is very active. The roots of identifying homosexuals lays down in different tales and epics like Ramayana and Mahabharata from which it could be established that homosexuality was in practice.²

However, the legal battle started in 2009 when Delhi High Court in the case of Naz Foundation v. Govt. of NCT has declared Section 377 of Indian Penal Code which criminalizes homosexuality and consensual sexual acts of adults in private as violative of Article 14, 15, and 21 of the Indian Constitution. The essence of this judgment brought hopes and happiness but the same couldn’t thrive for long as the judgment in the year 2013 got overruled by the Supreme Court in the case of Suresh Koushal v. Naz Foundation. 

Nonetheless, the community didn’t give up and continued the legal battle and apparently recorded its victory when a constitutional bench of the Supreme Court declared Section 377 to be violative of fundamental rights in the case of Navtej Johar v Union of India and partially struck down the same. It, therefore, allowed consensual intercourse between homosexuals which was earlier a criminal offense. The Court held that denial of self-expression is inviting death whereas irreplaceability of individuality and identity are   grant of respect to self. Therefore, while protecting the freedom of expression of the LGBTQI+ community, the Court observed that history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.

This verdict is, however, just the first step towards adopting a liberal approach and doing away with the concept of Victorian morality. It is because this judgment only allows the consensual relationship between the same-sex couples but do not give them the right to marry. The right to marriage is an important right because many of the fundamental and human rights are associated with marriage and the spouses are eligible for those rights only after they are married under the law.  

Currently, a matter is being heard by the Delhi High Court on the ground that the right to marry is a fundamental right. The Central government has opposed the stance of the petitioner stating that there is no fundamental right to seek recognition for same-sex marriage. The central government is arguing that marriage in India is not just a union of two individuals, but an institution between a biological man and woman as a family unit and, therefore, same-sex marriage cannot be allowed. The case is currently pending before the Court but it is anticipated that the judgment delivered by the Delhi High Court would have a high precedential value and the faith of the same-sex couples would be decided through this judgment in India. 

Conclusion

It should be understood that the right to life and dignity are the crucial aspects of the fundamental right which cannot be taken away or even surrendered. It is the duty of each state to protect those rights of an individual. Similarly, the right to autonomy and to choose a life partner of choice has to be seen from a constitutional angle. Governments should adopt those approaches which uphold constitutional morality and promote transformative constitutionalism. No government is above the rule of law and therefore, laws made by the government should not coincide with the grundnorm that is Constitution. A balance has to be created between the fundamental rights and the restrictions but it has to be understood that restrictions have to be applied in the strictest fashion. In the aforesaid context the right to same sex marriage shall appropriately be weighed and decided.